Osuna

A jury found defendants guilty of the *763 first degree murder of Mario Ferrari and fixed the penalty for each at death. The trial court denied motions for a new trial and entered judgment on the verdicts. The appeal is automatic. (Pen. Code, § 1239, subd. (b).)

The homicide occurred at the Mission Inn, a restaurant and bar in San Rafael. About 12:40 a.m. on September 6, 1965, Leo Albertoni, a co-owner and the chef of the Mission Inn, left the kitchen to go to his apartment upstairs at the back of the inn. On the way he was knocked down by a blow to the back of his neck. He got to his feet, and two hooded men confronted him with pistols. They tied his hands with wire and told him they wanted the safe opened and would kill him if he did not cooperate.

Albertoni did not remember the combination of the safe but told the robbers that it was written on a paper somewhere on the premises. The robbers searched for the combination in vain, but they found two automatic pistols, a .45 and a .32. Bach took a pistol, one commenting, "It’s good that we found your guns; we will use these if there is going to be any shooting, then we will throw them away.” They also took pillows from a bed to…